Federalism as a Pretext

That's not what Holmes says. It's a bunch of inferences piled on one another and the result may be your view, but it has nothing to do with his.

Unfortunately, following a predictive model leads lawyers to choose the path of least resistance. This prevents positive change in the law and reinforces status quo doctrine.

Why? Whether I am working for a client who needs a change in the law or can make the existing legal situation beneficial to him is immaterial to the need both clients will have to predict the reception of particular arguments or the legal effect of particular transactions. The effort to forecast outcomes is part of risk management whether one's client is going to choose the path of least resistance or not. As a lawyer, I am not, in general, a party representing conservative or "path of least resistance" interests. But that does not change the fact that I recognize what I do as well described in Holmes' terms.

Additionally, a predictive model will often encourage lawyers to appeal to ideological commitments of the judge.

Why? Most of the time, prediction of what the courts will do in fact has nothing to do with any particular judge. In counseling a client before there is litigation, how could the possible views of any particular judge play the slightest role in the forecasts made by the counselor?

The reason is that judges do not rule entirely, if at all, based on logic or ethics. Rather, while judges couch their decisions in the language of reason, there is always a lurking dogma that remains unspoken. There is no view from nowhere; while a judge may claim that his decision flows from a perfect deduction, there is always a missing premise – a belief that lacks rational justification. Says Holmes,

“But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.” Holmes, “The Path of the Law”

An irrelevant use of the quotation, so far as I can see. Connect it up or let it drop.

The most obvious example of this is when courts appeal to the values of federalism in justifying decisions that are difficult to classify as anything other than ideological. Federalism as a pretext for the advancement of dogma is best seen in a series of three Supreme Court cases from the last 20 years. In 1995, in US v. Lopez, the Supreme Court ruled that the Gun-Free School Zones Act of 1990 was unconstitutional because it was not within Congress’ commerce power. The justification provided was that a ban on guns in school zones does not substantially affect interstate commerce. The fear was that if the court ruled that such a ban was within Congress’ commerce power, then the commerce power “lacks any real limits because, depending on the level of generality, any activity can be looked upon as commercial.” Then, in 2000, in US v. Morrison, the Supreme Court found that the civil remedy provision of the Violence Against Women Act was unconstitutional because “gender-motivated crimes of violence are not [economic] activity […] Thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.” Chief Justice Rehnquist penned both decisions, which is ironic given that in Morrison the court adopted a fundamentally different test for evaluating a statute in light of the commerce power than that of Lopez. The court constructed the Lopez test, a pragmatic test of effects, as a response to the inadequacy of formalist distinctions between essentially “economic” and “noneconomic” activity in protecting a balance between federal and state powers. Yet, not five years later the same Chief Justice wrote that evaluating a statute in terms of its effects risks the destruction of federalism. Justice Breyer notes in his dissent in Morrison that the Chief Justice’s appeal to formalist distinctions disconnects federalism from its functional purposes. This kind of transcendental nonsense, as noted by Felix Cohen, is ever-present in American jurisprudence, and separates judicial opinion from the pragmatic impact that decisions have on our lives.

A long, complex paragraph that does nothing whatever to advance your argument.

The coup de grace, however, came in 2005 when in Gonzalez v. Raich the Supreme Court found that the Controlled Substances Act is a valid exercise of federal power because intrastate medicinal marijuana distribution in California substantially affects interstate commerce. Gone were the fears of an all-powerful federal government overreaching into pockets of regulation traditionally carved out as distinctly state governed. The majority opinion stressed the importance of the Supremacy Clause; the risk of an imbalance between federal and state powers was conspicuously absent from the discussion. Note also that the court again flip flops back to the substantial affects test from Lopez and ignores the above quoted language from Morrison. Nevertheless, what is common among the three cases is that in Morrison and Lopez, the court struck down legislation backed by Democrats in Congress, and then in Gonzalez, in what seemed like a case for a straightforward application of the doctrine established by Morrison and Lopez, the court upholds legislation advanced by President “I am not a crook” Nixon.

The upshot is that federalism matters when progressive legislation is under scrutiny, but is of secondary concern to the Supremacy Clause when conservative policy is in play. Frank Cross argues in “Realism about Federalism” that these and similar decisions use federalism concerns “as mere stalking horses for an anti-regulatory ideological agenda.”

Maybe. If so it's an example of a kind of post-hoc rationalization that is only possible for courts of last resort in judicial review situations, where the fate of a statute, rather than a series of individual liability decisions, is at stake. This is a beyond-negligible part of the legal system overall, and would hardly constitute a sound basis for reaching general conclusions in a theory of adjudication.

The broader point, however, is that judicial opinions are often backwards reasoning in the sense that the court picks the outcome it wants and then produces a rationalization to make it look as though the court reasoned to its conclusion instead of from it. Holmes concludes,

“Judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious.”

I don't know what the real point is to this draft. The long, clotted middle grafs on recent Supreme Court Commerce Clause cases do not seem to me very interesting, but the title suggests that they're what you consider important. What if anything have you contributed to the flood of mediocre literature on the partisanship of the contemporary Court?

On the other hand, the Holmesian grafs on either side of this indigestible lump do not, to my mind, fairly convey Holmes' point, and don't seem to me to have anything directly to do with whatever issue it is that makes these cases important, except insofar as Holmes offers an early version of the basic realist proposition that judicial opinions are rationalizations. If this is true, it is not true merely in contexts full of evidently political constitutional rhetoric but also in cases raising quotidian issues and resolving them tidily. Proving that constitutional law is politics under another name is trivial for the realist. Is that actually the theme of the draft?